Land and Environment Court New South Wales Medium Neutral Citation: Ardill Payne & Partners v Byron Shire Council [2021] NSWLEC 1010 Hearing dates: Conciliation conference on 17 and 23 December 2020 Date of orders: 11 January 2021 Decision date: 11 January 2021 Jurisdiction: Class 1 Before: Adam AC Decision: Refer to orders below at [29] Catchwords: APPEAL – development – demolition of existing residence – construction of new residence and swimming pool – conciliation conference – agreement between parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: New South Wales Rural Fire Service, Planning for Bush Fire Protection (2006) New South Wales Rural Fire Service, Planning for Bush Fire Protection (2019) Category: Principal judgment Parties: Ardill Payne & Partners (Applicant) Byron Shire Council (Respondent) Representation: Counsel: P Tomasetti SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/270883 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicant appeals, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP & A Act) against the refusal, on 13 March 2019, by the Respondent of Development Application No. 10.2018.634.1 for the 'demolition of existing dwelling house and construction of new dwelling house and swimming pool' on land identified as Lot 1 DP 112343 known as 1 Brownell Drive, Byron Bay (the subject site). 2. On 17 December 2020 I presided over a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). 3. Before the parties entered into confidential without prejudice discussions, an on-site inspection was held at which two objectors presented submissions – Mr Foggo of 3 Brownell Drive, the property immediately adjoining the subject site, and Mr Preston of 5 Brownell Drive. (The Council's bundle contained written submissions from Mr Foggo and Mr Preston as well as from other objectors). 4. The oral submissions were heard outside the garage of 3 Brownell Drive, after which observations of the subject site and the views to both Wategos Bay and the littoral rainforest in the adjacent conservation reserve from both 3 and 5 Brownell Drive. 5. Subsequently, the parties' representatives, some of the experts and the Court carried out a perambulation involving walking from 1 Brownell Drive along Marine Parade, Palm Valley Drive and back down Brownell Drive. During this walk the Applicant emphasised the diversity of appearance of the dwelling houses and the necessity, given the steep topography, of extensive excavation needed to construct new buildings into the slope within each site. 6. The final part of the inspection was of the subject site, where the boundary between the site and the council road reserve was identified, and the brush box tree, numbered Tree 9 on plans, which grows on the Cape Byron State Conservation Area and for which protection during construction is a requirement of the National Parks and Wildlife Service whilst observed. 7. After the inspection the conciliation conference recommenced in Byron Bay Courthouse. After confidential discussions between the parties I was advised that they were close to finalising an agreement, and an adjournment was required to Wednesday 23 December 2020 to enable revised plans to be prepared, a signed s 34 agreement to be produced and draft conditions of consent to be prepared. 8. The s 34AA conciliation resumed by MS Teams on 23 December 2020. The Applicant had prepared new plans, the principal change being the deletion of the upper storey of the proposed dwelling which was shown in the original development application before the Court. The parties filed a signed agreement pursuant to s 34 of the LEC Act. 9. The amendments to the plans addressed the Respondent's contentions. 10. Pursuant to s 34(3) of the LEC Act I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is one that the Court, acting as a consent authority standing in the shoes of council, could lawfully make in the proper exercise of its functions. 11. The parties' agreement involves the Court exercising the function under s 4.16 of the EP & A Act to determine the development application by grant of development consent. 12. The parties have prepared a note identifying the jurisdictional matters about which I must be satisfied in order to make the determination. I concur with the parties' submission that I should be satisfied as to the matters discussed in the note. 13. The jurisdictional matters arising under the relevant legislation are summarised below. Biodiversity Conservation Act 2016 s 7.7 1. The development application is not required to be accompanied by a Biodiversity Development Assessment Report (BDAR) because the proposed development is not likely to significantly affect threatened species – as agreed in the supplementary joint expert report of the ecologists (Mr Parker for the Applicant and Dr Fitzgerald for the Respondent). The ecology experts also agreed that the bushfire Asset Protection Zone is to be wholly within the subject site and no vegetation removal is proposed within the Cape Byron State Conservation Area or within any area identified within the biodiversity values maps. Environmental Planning and Assessment Act 1979 s 4.12(1) and Environmental Planning and Assessment Regulation 2000 cl 49 1. The development application was made with the consent of the owner of the subject site. EP & A Act s 4.14 1. The joint expert report of the bushfire consultants (Mr Short for the Applicant and Ms Jackson for the Respondent) confirms that the proposal is categorised as infill development and an outcome for the proposed development can be achieved which satisfies the requirements of Planning for Bushfire Protection 2006 (PBP 2006). PBP 2006 has been repealed and replaced by Planning for Bushfire Protection 2019. (PBP 2019). However, as the development application was submitted prior to the commencement of PBP 2019 and the transitional provisions of Environmental Planning and Assessment Regulation 2000 (EPA Regulation) cl 237B apply, and the relevant criteria of PBP 2006 apply to the assessment of the development application. EP & A Act s 4.15(1)(a)(i) – provisions of applicable environmental planning instruments State Environmental Planning Policy (Coastal Management) 2018 Clause 11 1. The subject site is identified as 'proximity area for littoral rainforest' on the Coastal Wetlands and Littoral Rainforests Area Map. Development consent must not be granted unless the consent authority is satisfied that the proposed development will not significantly impact on the integrity of the adjacent littoral rainforest or the quantity and quality of surface or ground water flows to or from the adjacent littoral rainforest. The joint reports of the ecologists filed on 7 May 2020 and 14 October 2020 provide assurance that there will not be significant impacts. Clause 13 1. The subject site comprises land that is within the ''coastal environmental area". Consequently, pursuant to subcl (2) consent cannot be granted unless the consent authority is satisfied that any identified adverse impacts will be avoided, will be managed to minimise impact, or if impact cannot be minimised the development will be managed to mitigate the impact. 2. Subclause (2) provides that development consent must not be granted unless the consent authority has considered whether the proposed development is likely to cause adverse impacts. The proposed development is for a residential dwelling that will replace the existing dwelling. Encroachment into the adjacent Cape Byron State Conservation Area will cease and the land affected by past encroachments will be revegetated. The long-term impacts of the proposed development are generally consistent with the impacts associated with the past development. On the basis of information provided I am satisfied that the development has been designed, cited and will be managed to avoid any of the adverse impacts referred to in cl 13(1). Clause 14 1. The subject site is within the coastal use area. Subclause (1)(a) requires the consent authority to consider whether the proposed development is likely to cause an adverse impact on a range of features and that consent cannot be granted unless the development is designed to avoid, minimise or if impacts cannot be minimised the development will be managed to mitigate impacts. 2. The proposed dwelling house is not on the foreshore, and will not interrupt views from public places to the foreshore. 3. I am satisfied that the development has been designed, sited and will be managed so that any relevant impacts referred to in cl 14(1)(a) will not result in significant impacts. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and Environmental Planning and Assessment Regulation 2000 cl 50 1. A BASIX certificate (No 947648S_02) for the development as modified has been issued. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 1. Pursuant to cl 8(1) of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, an authority to clear vegetation is not required, because the granting of development consent under Part 4 of the EP & A Act may authorise clearing as part of, or ancillary to, the carrying out the development. State Environmental Planning Policy (Infrastructure) 2007 1. Clause 45 of the State Environmental Planning Policy (Infrastructure) 2007 applies when a development application is for development involving installation of a swimming pool, and specifies defined distances of any overhead electrical power lines. 2. The relevant electricity supply authority is Essential Energy; consultation with Essential Energy has occurred and Essential Energy has agreed (by email dated 14 December 2020) to the incorporation of draft condition 15. 3. I am satisfied that inclusion of this condition will address issues raised by cl 45 of the State Environmental Planning Policy (Infrastructure) 2007. State Environmental Planning Policy No 55 – Remediation of Land 1. Clause 7 of the State Environmental Planning Policy No 55 – Remediation of Land requires that a consent authority must not consent to the carrying out of any development on land unless the consent authority has considered whether the land is contaminated, and whether remediation would result in land which is suitable for development. 2. The Statement of Environmental Effects which accompanied the development application discusses the issue of contamination (on page 19). 3. The site is currently used for residential purposes as has been the case for some time. The proposed use is for continuing residential use. Much of the site will be excavated to enable the proposed building to be constructed. 4. I am satisfied that the site is not contaminated. I am further satisfied that the proposed conditions applying to the demolition of the existing dwelling adequately provide for the management of any contamination that may become apparent during the demolition process. Byron Local Environmental Plan 2014 Clause 2.3(1) Zone Objectives and Land Use table 1. The subject site is within Zone R2 Low Density Residential. Development for the purpose of dwelling houses is permitted with consent. Clause 4.3(2) Height of Buildings 1. The height of a building on the subject site is not to exceed the maximum height shown for the land on the Height of Buildings map. The maximum height shown for the subject site is 9m, and the proposed building does not exceed 9m. Clause 4.4(2) Floor Space Ratio 1. The maximum floor space ratio (FSR) for any building on the subject site must not exceed the FSR shown for the site on the Floor Space Ratio map. The maximum FSR for the subject site is 0.4:1 and the proposed building does not exceed this. Clause 6.6 Essential Services 1. The existing dwelling currently enjoys all of the essential services required by cl 6.6. The proposed development will continue to have supply of the services. 2. The joint reports of the traffic experts, filed on 14 October 2020 and 16 December 2020, and the plans attached to these reports demonstrate that suitable vehicle access can be provided. 3. I am satisfied none of the matters raised by clause 6.6 are impediments to granting consent. 1. I note that the Respondent placed the application on public display after its receipt, and that a number of written submissions from objectors were received. As discussed above, during the site inspection the Court and the parties heard from two objectors and had the opportunity to make observations from within their properties. The amendments to the application agreed between the parties' address concerns raised by the objectors. The requirement in s 4.15(1)(d) of the EP & A Act to consider submissions has been satisfied. 2. The parties' decision is one that the Court could have made in the proper exercise of its functions. I am therefore required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to making these orders. I am not required to make, nor have made, any assessment of discretionary (merit) matters that may have arisen pursuant to s 4.15 of the EP & A Act. 4. The Court orders: 1. The Applicant is granted leave to amend Development Application No.10.2018.634.1 to rely on the following amended plans and documents: Plan No. Description Prepared by Dated: DA101 V3a Level 0 & Site Plan, Level 1 Plan Beach Architects 23 December 2020 DA102 V3a Level 2 & Level 3 Plan Beach Architects 23 December 2020 DA301 V3a Elevations Beach Architects 23 December 2020 DA302 V3a Elevations Beach Architects 23 December 2020 DA501 V3a Sections Beach Architects 23 December 2020 DA502 V3a Sections Beach Architects 23 December 2020 17919 – C01 – P7 Driveway and Access Plan Cozen Regan Group May 2020 (5/20) 17919 – C02 – P6 Sections and Details Cozen Regan Group May 2020 (5/20) 1. The appeal is upheld. 2. Development Application No. 10.2018.634.1 for demolition of existing structures, earthworks and the construction of a dwelling house with swimming pool on the land at Lot 1 in DP 112343, known as 1 Brownell Drive, Byron Bay, is approved subject to the Determination at Annexure "A". ……………………… P Adam Acting Commissioner of the Court Annexure A (258030, pdf) Plans (1230510, pdf) ********** Amendments 13 January 2021 - The date "11 January 2021" inserted into the "Date of Determination" (Page 1) of Annexure A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 January 2021